Nanjundappa and Others vs M. Sreeramappa and Others

Aravind Kumar, J.

Defendants 1 and 2 have filed this second appeal questioning the correctness and legality of the judgment and decree passed by the Principal District Judge, Kolar dated 04.12.2008 in R.A. No. 104/2008 (Old No. 151/2005) whereunder appeal filed by the first respondent challenging the judgment and decree passed in O.S. No. 293/1998 dated 02.03.2005 dismissing the suit for declaration of title, perpetual injunction and for mandatory injunction to demolish the building situated in the suit schedule property came to be reversed and suit came to be decreed.

Notice to Respondents 3, 4 and 5 dispensed with in exercise of the power vested by in this Court under Order 41 Rule 14 (Karnataka Amendment) since they were placed ex-parte before both the courts below. By consent of learned advocates appearing for the parties, this second appeal is taken up for final disposal and parties are referred to as per the rank in the Trial Court.

Plaintiff initially filed a suit for perpetual injunction which came to be amended from time to time and the final amended plaint would indicate that plaintiff has sought for declaration of his title in respect of suit schedule property, for mandatory injunction to direct the defendants to demolish the building constructed in the suit schedule property during the pendency of the suit and to handover the vacant possession of the same to the plaintiff and also for perpetual injunction to restrain the defendants, his agents, relatives, laborers or any one claiming under or through them from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property. On service of suit summons defendants appeared, filed their written statement and denied the averments made in the plaint and also contended that they are in possession and enjoyment of portion of suit property.

On the basis of the pleadings of parties, trial Court framed issues for its adjudication and after answering issue No. 1 partly in the affirmative and partly in the negative and issue No. 2 in the affirmative denied the relief of declaration of title as sought for by the plaintiff and answering issue No. 3 and additional issue No. 2 in the negative and consequently dismissed the suit in its entirety.

Being aggrieved by said judgment and decree plaintiff preferred an appeal in RA No. 151/2005 which was later re-numbered as RA No. 104/2008. Lower Appellate Court has reversed the judgment and decree passed by the Trial Court by concluding that plaintiff is the absolute owner of the suit schedule property and since there is assertion on the part of defendants (contesting defendants) that suit schedule property is in their possession, decree for perpetual injunction also came to be granted and accordingly decreed the suit as prayed for. Hence, this second appeal has been preferred by defendants No. 1 and 2 assailing the judgment and decree passed in R.A. No. 151/2005.

I have heard the arguments of learned advocates appearing for the parties, namely, Sriyuths Ramesh P. Kulkarni, appearing on behalf of defendant Nos. 1 and 2 and Sri. Umesh appearing on behalf of Sri. M. Narayana Reddy, for R1(A to E).

It is the contention of learned counsel appearing for the appellants/defendants 1 and 2 that Lower Appellate Court ought to have made an enquiry to find out as to which portion of Sy. No. 131/1 was acquired by State Authorities, which portion had been retained by its original owner, what was the extent that was apportioned between the original plaintiff Kannur Muniyappa and his brothers and what was the extent which came to be allotted in favour of Sri. Kannur Muniyappa or retained by him in order to grant a decree for declaration in as much as the issue which had arisen before the Courts was to find out as to whether the building constructed by defendants 1 and 2 were within the suit schedule property as claimed by the plaintiff and this exercise was not undertaken at all.

On account of non-consideration of this vital aspect by the Lower Appellate Court, according to learned counsel it has resulted in miscarriage in the administration of justice. He would elaborate his submission by contending that when plaintiff has sought for declaration of his title or ownership over the suit schedule property, the burden was on plaintiff to prove the same and as such trial Court had rightly held that plaintiff had failed to prove his title. He would also submit that evidence on record would disclose that only 12 guntas of land was allotted to the original plaintiff in the alleged family partition and as such burden cast on the plaintiff to have established the same and on account of non-production of this vital document i.e., partition Deed, Lower Appellate Court could not have decreed the suit as prayed for.

It is further contention of Sri Ramesh P. Kulkarni, learned Advocate appearing for appellants that lower appellate Court erred in not considering the fact that plaintiff having claimed that he got 16 guntas of land in Sy. No. 131/1 under a partition, had not placed the said partition deed and as such, his plea that he got 16 guntas of land by the side of Gaddekannur road could not have been accepted by lower appellate Court. He would further contend that in order to demonstrate that property which is in possession of defendants measuring 38'' x 28'' is situated outside Sy. No. 131/1, additional evidence had been placed by defendants by producing two documents and when said additional evidence is read in conjunction with the admitted evidence of P.W.1, it would clearly establish that property claimed by plaintiff is outside the property belonging to defendants-1 and 2 and submits non consideration of these vital aspect has resulted in suit being decreed erroneously. Hence, he prays for setting aside the judgment and decree passed by lower appellate Court by receiving the additional evidence after allowing the application for additional evidence and taking it on record. Hence, he prays for dismissing the suit of plaintiff as was done by the trial Court. On these amongst other grounds, he contends that substantial questions of law formulated in the appeal memorandum would arise for consideration and prays for formulating the same and answering it in favour of appellants.

Per contra, Sri Umesh, learned Advocate appearing on behalf of Sri. Narayana Reddy would support the judgment and decree passed by lower appellate Court and contends that trial Court had dismissed the suit only on the ground that other members of the family had not been made as parties which error came to be noticed by the lower appellate Court and it was noticed from records that plaintiff had impleaded one of the sons of Sri Kannur Muniyappa''s brother as fifth defendant who had also not contested the suit or in other words, there was non-traversing of plaint averments which amounts to admission of the plaint averments. Hence, he submits that there was no error committed by the lower appellate Court and contends that grounds urged by appellate/defendants in this second appeal are all questions of fact which cannot be gone into in second appeal and there being no substantial questions of law involved, he prays for affirming the judgment and decree passed by first appellate Court and second appeal being dismissed.

Having heard the learned Advocates appearing for parties and on perusal of records secured from the Courts below and after bestowing my careful and anxious consideration to rival contentions raised by learned Advocates, this Court is of the considered view that following substantial questions of law would arise for consideration:

"(1) Whether lower appellate Court was justified in affirming the finding recorded by trial Court with regard to title to the suit schedule property of the plaintiff not only on the basis of sale deed but also by relying upon the survey sketch Ex. P-7 prepared by the revenue authorities which was without notice to defendants?

Or

Whether survey sketch - Ex. P-7 was conclusive proof/evidence to hold that plaintiff is the absolute owner of suit schedule property namely, to an extent measuring 00.14 guntas?

(2) Whether application filed by defendants-1 and 2 seeking for production of additional evidence deserves to be allowed or dismissed?

(3) What order?"

Facts in brief which has led to filing of this appeal can be crystallized as under:

"Sri Kannur Muniyappa (original plaintiff) filed a suit for perpetual injunction in respect of property bearing Sy. No. 131/1 to an extent of 26 guntas. Subsequently, plaint was amended twice and relief ultimately claimed by the plaintiff was for declaration of his title to the suit property, for demolition of the building said to have been constructed by defendants-1 and 2 in a portion of suit schedule property and also for perpetual injunction. It was contended by plaintiff that entire property bearing Sy. No. 131/1 was purchased by him under a registered sale deed dated 31.03.1943 from its previous owner Sri Eerappa, S/o. Sonnegowda and description of the properties as described in the said sale deed is 3 acres 3 guntas though actual extent being 3 acres 6 guntas (which also included 10 guntas of Hiduvali kharab land). It was also contended by plaintiff that two acres 20 guntas came to be acquired by Kolar Urban Development Authority for formation of a residential layout and as such, balance 26 guntas remained with the plaintiff. It was further contended that there was partition between members of the family and in the said partition, property bearing Sy. No. 131/1 was also partitioned and by virtue of the same, plaintiff was in possession and enjoyment of 26 guntas of land and defendants without any right, title or interest over suit schedule property had trespassed and put up construction by denying plaintiffs title and as such plaintiff sought for declaration of his title to suit schedule property for mandatory injunction and for perpetual injunction."

On service of suit summons, defendants-1 and 2 appeared and filed their written statement denying averments made in the plaint and contending inter alia that they are in possession to an extent of 14'' x 38''. It was specifically contended that property in possession of the defendants is outside Sy. No. 131/1 namely, suit schedule property. On these amongst other grounds, defendants sought for dismissal of the suit.

Trial Court after considering pleadings of the parties, framed following issues and additional issues:

"1) Whether the plaintiff proves that he was in possession and enjoyment of the suit schedule property on the date of suit?

2) Whether the plaintiff proves the alleged interference?

3) Whether the plaintiff is entitled for the relief of permanent injunction as sought?

4) What decree or orders?

I- Additional issues

1) Whether the plaintiff proves that he is entitled for the relief of declaration?

2) Whether the plaintiff proves that he is entitled for the relief of Mandatory injunction as prayed for?

II- Additional issues

1) Whether the defendants prove that this Court has no pecuniary jurisdiction to try this case in view of the amendment?

2) Whether the defendants prove that the Court fee paid is insufficient and the suit is not properly valued?

III- Additional issues

1) Whether the defendants prove that this suit is bad for non-joinder of necessary parties?

2) Whether the defendants prove that the plaintiff has furnished wrong boundary to suit property?"

Both parties tendered their evidence namely, oral and documentary and plaintiffs son got himself examined as P.W.1 and in all, plaintiff produced eight documents and got them marked as Exs. P-1 to P-8. Per contra, second defendant got himself examined as D.W.1 and produced 23 documents and they were got marked as Ex. D-1 to D-23. On behalf of defendants, two witnesses were examined as D.Ws. 2 and 3. After considering the evidence on record and oral arguments advanced by respective learned Advocates, trial Court held that title to the suit schedule property vests with the plaintiff. However, trial Court dismissed the suit on the ground that plaintiff had not impleaded necessary and proper parties to the suit and also on the ground that plaintiff having claimed that portion of land in Sy. No. 131/1 had fallen to different members of the family under partition and suit schedule property had fallen to his share. This fact had not established by producing the partition deed.

Being aggrieved by decree of dismissal of the suit by trial Court, plaintiff preferred an appeal in R.A. No. 151/2005 which was renumbered as R.A. No. 104/2008.

After hearing learned Advocates appearing for parties, lower appellate Court secured the records of trial Court and formulated following points for its consideration:

On re-appreciation of evidence and on perusal of records, lower appellate Court reversed the finding recorded by trial Court and held that since one of the sons of plaintiffs brother had been impleaded as fifth defendant in the suit during pendency of the suit, which had not been taken into consideration by the trial Court had resulted in dismissal of the suit erroneously and as such decreed the suit by reversing the finding recorded by trial Court vide its judgment and decree dated 04.12.2008 which is under challenge in this second appeal.

In order to answer the substantial questions of law formulated at No. 1 herein above, this Court is of the considered view that application for production of additional document will have to be considered, since it would have a bearing and impact on merits of the case. Hence, same is taken up for consideration along with substantial questions of law formulated herein above.

Re: Substantial Question Law Nos. 1 and 2:

Though facts in detail have been already narrated above, it would be necessary to state few facts which has bearing and impact on adjudication of questions of law and also at the cost of repetition.

Plaintiff claiming to be owner in possession and enjoyment of Sy. No. 131/1 of Tamaka village, Kolar District initially had claimed for relief of perpetual injunction against defendants. His plea in the plaint would disclose that not only on the strength of sale deed dated 31.03.1943, which came to be marked as Exs. P-1 and P-6, but also on the strength of a partition which came to be entered into between members of his family, he claimed right, title and possession over suit schedule property. Thus, initial burden was on the plaintiff to establish his title to suit schedule property based on a partition deed which took place amongst his family members and suit schedule property having fallen to his share. However, for reasons best known, this exercise was not undertaken by the plaintiff. Perusal of judgment of lower appellate Court would indicate that this aspect has not been delved upon though urged by defendants-1 and 2.

Perusal of the plaint averments would clearly indicate that it is at variance with the evidence available on record or in other words, plea put forward in the plaint is vague and not in consonance with evidence on record. Plaintiff having claimed title to suit schedule property on the strength of a partition deed having been effected among his family members did not produce the said partition deed at all. As to whether suit schedule property had fallen to plaintiffs share or to the share of any other member of his family, was an issue which was required to be gone into by the trial Court while examining the plaintiffs prayer for declaration of his title. On account of plaintiff having failed to establish and prove his title, trial Court found that it would not be in a position to declare the title of plaintiff over suit schedule property and this was not the only reason, but also for the reason that other members who had been allotted different portions of the property in Sy. No. 131 had not been impleaded as parties to the suit. At this juncture, it would be apt to note that defendants have not denied title of the plaintiff, but on the other hand, averments made in the written statement though vague, does not even remotely suggest that defendants have denied title of the plaintiff. On the other hand, it is the specific claim of defendants that property which is claimed to be in possession of defendants-1 and 2 was allotted to them by Gram Panchayat and at the same time defendants also did not produce the allotment letter or any other piece of evidence to establish or prove such allotment. However, on the strength of khata issued by Gram Panchayat, defendants-1 and 2 asserted their title to the property said to be in their possession. Perusal of the plea putforward in the written statement and evidence on record would indicate that they are inconsistent. On the one hand, defendants contend in their oral evidence that property in their possession was allotted by Gram panchayat, on the other hand, they contend that properties are ancestral properties. It is not in dispute that defendants'' father and Sri Kannur Muniyappa were uterine brothers and plea of the plaintiff is that Sy. No. 131/1 was partitioned and plaintiff was allotted 26 guntas of land. If it were to be so, burden was equally on the plaintiff as well as on the defendants to prove what was the extent allotted to each of the family member. However, both parties did not undertake this exercise.

Be that as it may. As already noticed herein above, what swayed in the mind of lower appellate Court to reverse the finding of trial Court was the fact that trial Court had not noticed that one of the sons of plaintiffs brother had been made party namely, had been arrayed as fifth defendant and same had been overlooked by the trial Court. The bone of contention between parties was with regard to title in respect of property bearing Sy. No. 131/1. Defendants claimed property allotted to them was not part of Sy. No. 131/1 or it was not within suit schedule property but a distinct property measuring 14'' x 38'' and they have also taken a specific stand that it falls outside Sy. No. 131/1. In order to buttress said contention, defendants have produced an endorsement issued by the jurisdictional Tahsildar namely, endorsement dated 08.03.1999 (now sought to be produced by way additional evidence) which would indicate that it bears assessment Register No. 332, 333 (which is claimed to be property in possession of defendant) whereunder it is intimated to the jurisdictional Station House Officer that property claimed by defendants is outside Sy. No. 131/1. Thus, there is identity crisis in respect of suit schedule property namely, on the one hand, plaintiff is asserting that defendants in the guise of allotment of a property made by Gram Panchayat has trespassed into the property bearing Sy. No. 131/1, but on the other hand, defendants have contended that property said to be in their possession is outside Sy. No. 131/1. Thus, it boils down to the fact as to whether property allotted by Gram Panchayat which is now claimed by defendants is within Sy. No. 131/1 or outside said survey number. Lower appellate Court and trial Court based on survey sketch which came to be marked as Ex. P-7 came to the conclusion that building put up by defendants is within Sy. No. 131/1. However, said Ex. P-7 has been prepared by the authorities without issuance of notice to defendants-1 and 2 and prepared in their absence as could be seen from evidence on record. As to what credence can be given to said report is the moot question. In the absence of notice being issued to defendants, said survey sketch cannot be made as the basis for being made use of against defendants or to decree the suit in favour of plaintiffs.

In view of the fact that additional evidence which is sought to be produced would have a bearing on the claim of defendants and plaintiff would have right to rebut such evidence that may be tendered by defendants, this Court is of the considered view that it would suffice if judgment and decree passed by lower appellate Court in R.A. No. 151/2005 renumbered as R.A. No. 104/2008 is set aside and the matter is remitted to trial Court for recording fresh evidence insofar as additional documents sought for being produced by defendants-1 and 2 by affording opportunity to plaintiffs to rebut said evidence that may be tendered by defendants-1 and 2 and if so advised. Hence, substantial questions of law formulated hereinabove is answered in favour of defendants-appellants and against respondent-plaintiff. It is also made clear that no opinion is expressed with regard to merits of the claim and same is left open to be adjudicated by the trial Court.

For the reasons aforestated, I proceed to pass the following:

ORDER

"(1) Second appeal is hereby allowed.

(2) Judgment and decree passed by Principal Civil Judge, Kolar in R.A. No. 151/2005 renumbered as R.A. No. 104/2008 dated 03.12.2008 is hereby set aside.

(3) Matter is remitted back to the Principal Civil Judge, (Jr. Dvn.) Kolar for being adjudicated afresh by receiving the Miscellaneous Application No. 1246/2009 on its file and also afford opportunity to both the parties to tender evidence.

(4) Keeping in view that parties are litigating from the year 1998, trial Court is directed to dispose of the suit within one year from the date of appearance of the parties which is fixed on 22.06.2015. Lower appellate Court is not required to issue notice to appellants and first respondent. However, it shall issue notice to other respondents.

(5) Registry is directed to re-transmit records to the jurisdictional trial Court forthwith.

(6) No costs."